Appeals Granted

Case

SHIRLEY CONGER, ADMINISTRATOR OF THE ESTATE OF PAUL CONGER v. EUGENE J. BARRETT, M.D., ET AL.
(Record Number 091492)

From

The Circuit Court of Albemarle County; Cheryl V. Higgins, Judge.

Counsel

Sidney H. Kirstein for appellant.

C.J. Steuart Thomas, III [Timberlake, Smith, Thomas & Moses, P.C.] for appellee Eugene J. Barrett, Bevin R. Alexander, Jr. [Freeman, Dunn, Alexander & Tiller, P.C.] for appellee James C. Vandwater.

Assignments of Error

1. THE TRIAL COURT ERRED BY FAILING TO FIND THAT ITS MAY 1, 2008 ORDER CLEARLY AND UNAMBIGUOUSLY REINSTATED CONGER'S ACTION, DISCONTINED UNDER CODE SECTION 8.01-335 (B), WHICH THEN RETAINED ITS ORIGINAL FILING DATE.
2. THE TRIAL COURT'S ERRED BY FAILING TO PERCEIVE THE SIGNIFICANCE OF THE 1997 AMENDMENTS TO CODE 8.01-335(B).
3. THE TRIAL COURT ERRED BY FINDING THAT THE CURRENT PROVISIONS OF CODE SECTION 8.01-335(B) CONTINUE TO AUTHORIZE DISMISSAL OF AN INACTIVE CASE.
4. THE TRIAL COURT ERRED IN APPLYING CODE SECTION 8.01-244's STATUTE OF LIMITATIONS TO CONGER'S REINSTATED ACTION.
5. ASSUMING ARGUENDO THAT SECTION 8.01 -335(B) STILL AFFORDS THE TRIAL COURT DISCRETION TO DISCONTINUE OR DISMISS, THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE ACTION.

Assignments of Cross-Error

1. The Trial Court erred and abused its discretion in reinstating the Plaintiff’s action where the record demonstrates that the motion was filed after the expiration of the two-year wrongful death statute of limitations, § 8.01-244.

Date Granted

  01-04-2010